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Federal Court Judgments

Federal Court Judgments

By Dan Star QC

Environment Judgment 

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Administrative and environment law

Judicial review under the EPBC Act

In Triabunna Investments Pty Ltd v Minister for Environment and Energy [2019] FCAFC 60 (15 April 2019) the Full Court heard an appeal from the dismissal of a judicial review proceeding in relation to a decision by the delegate of the Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The subject matter of the appeal was an exercise of power by the delegate under s75 of the EPBC Act, which allowed for the establishment and operation of a salmon farm at Okehampton Bay in Tasmania.

Central to the question before the primary judge, and on appeal, was whether the proposal was a “controlled action” for the purposes of the EPBC Act because the establishment and operation of the farm would, or was likely to, have a significant impact on one or more of the matters of national environmental significance set out in Pt 3 of Ch 2 of the EPBC Act (at [116]). The delegate decided, as set out in the Notification of Referral Decision (Notification), that the “proposed action is not a controlled action provided it is undertaken in the manner set out in this decision”. By doing so, the delegate decided that the proposed action was not a “controlled action” provided it was undertaken in a “particular manner” within the meaning of s77A of the EPBC Act.

The key issue in the appeal was whether the Notification, given pursuant to s77 of the EPBC Act, complied with s77A of that Act. Mortimer J noted that there had been no other authority where the proper construction and operation of s77A had been determined (at [197]).

The Full Court, in separate reasons given by Besanko J, Flick J and Mortimer J, held that the delegate and primary judge had erred on this issue. The appeal was allowed in part. While relief was not finally decided, the Court’s “present view” was that the appropriate relief was to set aside the notice issued under s77 of the EPBC Act and to require a fresh notice to be issued (Mortimer J at [247], with whom Besanko J agreed at [15]).

 

Administrative and migration law

Jurisdictional error – whether the discretion to exclude evidence under s138 of the Evidence Act 1995 (Cth) applies to the Minister in making decisions under the Migration Act 1958 (Cth)

In Minister for Home Affairs v Hunt [2019] FCAFC 58 (11 April 2019) the Full Court allowed the Minister’s appeal. In 2017, the Minister decided to exercise his discretion under s501(2) of the Migration Act 1958 (Cth) to cancel Mr Hunt’s visa on the basis that he reasonably suspected that Mr Hunt did not pass the character test and that Mr Hunt had not otherwise satisfied him that he did pass that character test. Mr Hunt challenged this in the Federal Court. The primary judge held that the Minister committed jurisdictional error by failing to have regard to the fact that Mr Hunt’s sentence of imprisonment for certain sexual offences for nine months was suspended wholly for two years. The Full Court overturned the primary judge’s decision on this point, noting that when regard was had to the totality of the material before the Minister it was not appropriate to draw the inference so as to find as a positive fact that the Minister overlooked the suspension (at [71]).

The Full Court also dismissed Mr Hunt’s notice of contention. The notice of contention concerned two documents allegedly obtained by the Home Affairs Department in contravention of the Information Privacy Act 2009 (Qld). Mr Hunt contended that information as to his prior convictions was obtained by reason of the non-compliance and as his data had been accessed unlawfully, the documents were inadmissible under s138 of the Evidence Act 1995 (Cth) including in support of the decision to cancel his visa under s502 of the Migration Act. The primary judge and the Full Court rejected this ground for a variety of reasons. The Full Court held there is no requirement in Division 2 or elsewhere in the Migration Act imposed on the Minister to comply with state (or Commonwealth) privacy laws in the obtaining of information (at [90]). Further, McKerracher, Perry and Banks-Smith JJ said at [72]: “Finally, the discretion under s138 of the Evidence Act 1995 (Cth) has no application to administrative decision-makers who are not bound to apply the rules of evidence or by the Evidence Act, albeit that the rules of evidence may afford guidance to administrative decision-makers: see s4, Evidence Act; and eg Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 per Evans J (at [15]) and the general discussion in the context of administrative tribunals in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 per Flick and Perry JJ (at [88]-[97]). As such, there was no requirement that the Minister undertake the balancing exercise required by s138 of the Evidence Act before having regard to the Criminal Record or Sentencing Transcript . . .”

 

Costs

Consideration of barrister’s costs agreement – indemnity principle – uplift fees

In Mango Boulevard Pty Ltd v Whitton [2019] FCA 490 (11 April 2019) Rangiah J determined a dispute about the costs previously ordered against the applicants. The applicants had sought judicial review of a decision of the second and third respondents’ trustee in bankruptcy and of a resolution passed by their creditors (the Review Proceeding). In an earlier judgment Rangiah J dismissed the proceeding and ordered that the applicants pay the bulk of the respondents’ costs. Relevantly, it was the costs of the second and third respondents’ Senior Counsel that was now in issue.

The applicants argued that the Senior Counsel entered his costs agreement in contravention of s324(1) of the Legal Profession Act 2004 (NSW) (repealed) (the LPA (NSW)), that the agreement was void, and that he was not entitled to recover his fees. In the alternative, the applicants argued that the Senior Counsel failed to comply with his obligation under s324(4) of the LPA (NSW) to provide an estimate of his uplift fee, with the consequence that he was only entitled to recover, and they were only required to pay, the fair and reasonable value of his services. The issues in dispute which the Court addressed at [37] were:

  • whether the Senior Counsel entered a costs agreement “in relation to a claim for damages”
  • whether the Senior Counsel entered a single costs agreement for the whole of the various litigation, or a separate costs agreement for each proceeding, including for the Review Proceeding
  • whether the phrase “in the matter to which the costs agreement related” in s327(4) extends to the Review Proceeding, which was not a claim for damages
  • whether the Senior Counsel’s costs agreement was void under s327(1) because it did not contain an estimate of his uplift fee in contravention of s324(4), and the consequences of such a contravention
  • whether the LPA (NSW) applied to the Senior Counsel’s costs agreement, or whether the Legal Profession Act 2007 (Qld) applied instead.

In addressing these issues, Rangiah J considered the connection and distinction between a costs agreement and a retainer agreement (at [65]-[76]).

The costs agreement was held not to be void. However the Senior Counsel’s costs agreement did not comply with s324(4) of the LPA (NSW) which required that the agreement contain an estimate of the uplift fee or, if that was not reasonably practicable, a range of estimates of the uplift fee. The effect of s319(1)(c) was that his legal costs were recoverable “according to the fair and reasonable value of the legal services provided” (at [101] and [134]-[135]).

 

Practice and procedure

Application for temporary stay of proceedings

In OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 486 (10 April 2019) O’Bryan J dismissed an application by a telecommunications carrier seeking a temporary stay of court proceedings for declaratory and injunctive relief pending the outcome of objections referred to the Telecommunications Industry Ombudsman. The Court summarised the principles applicable to a stay of proceedings (at [10]-[25]) pending the outcome of proceedings before an administrative body. n

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 9225 8757 or email danstar@vicbar.com.au.

The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to paragraph numbers in the judgment.

 


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